Chief Justice Warren E. Burger: We will hear arguments first this morning in Segura against the United States.

Mr. Fabricant.

Peter J. Fabricant: Mr. Chief Justice, and may it please the Court:

On February 12, 1981 law enforcement officials forceably entered the home of the Petitioners.

At the time of the entry the police had no search warrant or arrest warrant nor the consent of any of the occupants.

No exigent circumstances existed which could justify the actions of the police.

The only excuse for the entry was the belief by the police that contraband was concealed within the dwelling.

Having once violated the privacy of the home the police removed all of the occupants and remained there by themselves for a continuous period of some 19 hours.

Thereafter the police obtained a search warrant based on knowledge they possessed many hours before the entry and occupation, and upon execution of the warrant contraband was discovered secreted within the premises.

The question before this Court is whether that contraband should be suppressed.

We respectfully submit that the unlawful entry into, seizure and 19 hour continuous occupation of the Petitioners' home constituted a seizure under the Fourth Amendment not only of the home but of its contents.

Since the actions of the police constituted a seizure of the contraband before the search warrant was ever obtained any doctrine of attenuation under the exclusionary rule would not apply in this case, and in fact the purposes of the exclusionary rule would be achieved by its application here.

The facts are not in doubt.

On February 12, 1981 in New York City at about 5:30 in the afternoon the police observed what appeared to them to be a drug transaction on the streets of Queens, New York.

At 6:30, an hour later, they telephoned the United States Attorneys' Office for the Eastern District of New York to make inquiries about perhaps arresting the Petitioners and getting a search warrant to search their apartment in Queens, New York.

They were told by an Assistant United States Attorney at 6:30 in the evening that the magistrate was not around, and he suggested or directed the police to go to the premises, the apartment building, to arrest the Petitioners if they saw them and to secure the premises from the outside.

The Assistant United States Attorney further directed the agents not to enter the apartment unless exigent circumstances should occur.

Unidentified Justice: Where did all of this take place?

On Long Island?

Peter J. Fabricant: It occurred in Queens, New York, part of New York City.

Unidentified Justice: Only one magistrate up there?

Peter J. Fabricant: No.

In the Eastern District of New York there are 14 District Court judges and 4 magistrates.

There is always a District Court judge that is on emergency duty and available to sign warrants at any time, and there is also one of the four magistrates is also on emergency duty so as to sign warrants.

Unidentified Justice: What day of the week was February 12?

Peter J. Fabricant: It was not a holiday.

It was in the middle of the week.

It was not a Friday or a holiday, Your Honor, or the weekend.

Unidentified Justice: Do you feel that had the magistrate known of the 18 or 19 hour occupancy of the home that his action would have been any different?

Peter J. Fabricant: When he finally signed the warrant the next day?

Perhaps not.

I think under Franks v. Delaware he might be able to remove whatever taint there might be.

I mention in my brief the fact, Justice Blackmun, that the agents did not 19 hours late when they applied for the warrant did not say in their affidavit that they had entered the premises.

I say that as an example of the egregious conduct of the police.

Unidentified Justice: Counsel, I suppose you would concede that there was probable cause for the issuance of a warrant on the afternoon that you described where the police saw the delivery of this parcel to the two other people.

Peter J. Fabricant: Well, a warrant was eventually signed and it was based on the information that the police had before they entered the apartment.

Unidentified Justice: You concede that was probable cause.

Peter J. Fabricant: Yes, as has been so held by the District Court and the Court of Appeals.

Unidentified Justice: Yes.

Peter J. Fabricant: But I believe, Justice Powell, that it is the neutral and detached magistrate who in the first instance must make the determination of probable cause.

I think one of the main problems in this case is that the police, sure, they had a great deal of suspicion that there was contraband in the apartment, but the Constitution and really all of the cases of this Court dealing with dwellings say that absent exigent circumstances the police must get a warrant before they cross the threshold of the premises.

Unidentified Justice: Well, Mr. Fabricant, there is certainly some of our cases dealing with say a suitcase or whatever it was in Arkansas v. Sanders and the footlocker in Chadwick that say even though the police may not inspect a container without a warrant they can detain it while they are getting a warrant.

Now why is this case any different from those?

Peter J. Fabricant: It is different because it is in a home where one has the highest expectation of privacy.

In Arkansas v. Sanders and in United States v. Chadwick... Well, Chadwick dealt with a footlocker that I believe was being put into an automobile and Arkansas v. Sanders dealt with a suitcase which was in an automobile or being carried around by somebody outside.

The difference is I believe twofold.

First of all, the actions of the police in Arkansas v. Sanders and United States v. Chadwick in the seizure might be considered as reasonable because under the circumstances the mobility of the suitcase and the footlocker would mean that if they went to get a warrant the automobiles and the suitcases with the possible contraband in them would not be around any more.

The other difference is that in Sanders and Chadwick the police were at a place and in a position where they had an absolute right to be.

They were not in somebody's house.

They were out in the public.

Unidentified Justice: Mr. Fabricant, in your view could the police have secured the house from the outside for 19 hours while they got the warrant not letting anybody in or out?

Peter J. Fabricant: Yes.

That would have been much more reasonable.

Unidentified Justice: And in your view would have been acceptable.

How about if the police had made the illegal entry into the house but then had withdrawn immediately thereafter and then 19 hours later gotten the warrant?

Peter J. Fabricant: That would be a closer question.

I think that since--

Unidentified Justice: Well, valid or invalid?

Peter J. Fabricant: --It would be a closer question as to... Well, it would be invalid because I think that--

Unidentified Justice: The subsequent warrant in your view.

Peter J. Fabricant: --The subsequent warrant would still be invalid because I think what the Fourth Amendment seeks to protect more than anything else is the physical entry into the home, but it would be a different situation.

Unidentified Justice: What if the initial entry then had been on exigent circumstances and valid, let's say, in hot pursuit of someone or something and then 19 hours expired before the warrant?

Peter J. Fabricant: That would be... And they stayed outside?

Unidentified Justice: Inside, but a legal entry.

Peter J. Fabricant: Well, that would... They would be in a place where they had a right to be.

That would be the difference.

Their entry would have been legal.

Their remaining there after the exigency has terminated would be a violation of the privacy of the home, but at least their initial entry would have been all right.

Unidentified Justice: Right, and the subsequent warrant valid?

Peter J. Fabricant: And the subsequent warrant might very well have been valid.

It is my argument may it please the Court that even should this Court find that an initial illegal entry and then withdrawal and the waiting outside does not constitute a seizure of the later discovered contraband.

I submit that the entry and the remaining inside once even any feeling of exigency has been dissipated equals a continuous deprivation of the rights of the Petitioners.

Unidentified Justice: At the time of the entry and/or shortly thereafter do you think the officers could have taken the parcels and removed them from the apartment and secured them and then left the apartment and then ultimately opened them at the time they got the warrant?

Peter J. Fabricant: Absolutely not.

I think United States v. Johnson... Johnson v. United States, McDonald v. United States this Court has said you cannot unless you have emergency or exigent circumstances go into a house without a warrant.

In, for example, Johnson v. United States the police smelled opium in hotel room, the odor order of opium, and they went in there and grabbed the opium.

In McDonald v. United States they heard slot machines or some sound of gambling devices and they went in and seized the gambling devices.

I do not think the opening or not opening of a parcel is relevant when the police are in somebody's home where they have no right to be to seize the parcel.

Unidentified Justice: Under your theory when the police are outside would they prevent people from going in?

Peter J. Fabricant: I believe that they could.

It would be--

Unidentified Justice: On what ground?

Peter J. Fabricant: --If they acted reasonably it would be--

Unidentified Justice: On what ground?

Peter J. Fabricant: --On the grounds that they are securing the premises.

They are not entering the premises.

They are securing the premises from the outside and they do not want people to go in and disturb what might be in there.

They would have more of a reasonable right to do that.

The result would be the same.

They are staying outside or going inside, but if they stay outside then the privacy of the home has not been violated--

Unidentified Justice: I am having great difficulty with what is the difference.

They stay in there that means you cannot come in or go out.

Peter J. Fabricant: --That is right.

Unidentified Justice: If they are outside you cannot come in or go out.

What is the difference?

Peter J. Fabricant: There is no difference in that respect.

Unidentified Justice: You said there was a difference.

Peter J. Fabricant: No.

There is no difference in the movement of people in and out of the apartment, but there is a difference concerning your invasion of privacy of what is inside your dwelling.

Unidentified Justice: There is a difference I submit by people moving in and out because moving in and out can carry in and out.

Peter J. Fabricant: Correct.

Unidentified Justice: So there is a difference.

Well, don't you have to say that the warrant is the product of the illegal entry?

Peter J. Fabricant: No, I do not believe, Justice White, that you have to say that in this case.

Unidentified Justice: Why not?

Peter J. Fabricant: I don't think that the warrant and the discovery of the contraband is secondary evidence.

Unidentified Justice: The only thing that was admitted was the materials that were found after the warrant was issued.

Peter J. Fabricant: That is correct.

Unidentified Justice: The warrant rested on independent grounds did it not?

Peter J. Fabricant: That is correct.

It rested on the knowledge that the police had before they entered the apartment.

Unidentified Justice: Why doesn't it indicate... Suppose there had never been any warrant issued and no search under a warrant.

The officers just went into the apartment illegally and seized what they saw in plain sight and then left.

That would be held inadmissible--

Peter J. Fabricant: That is absolutely... and was.

Unidentified Justice: --Just like it was in this case.

Peter J. Fabricant: That is correct.

Unidentified Justice: So why isn't that a sufficient remedy for the illegal entry just render inadmissible what they seized prior to the warrant?

Peter J. Fabricant: Well, I think that depends on your definition of seizure.

It is my contention that the illegal entry coupled with the 19 hour occupation equals a seizure not only of what they saw in open view but of what they suspected was there but had not yet discovered.

Unidentified Justice: So you think that it is a product because if they had not been there the evidence might have been destroyed or it might have gone somewhere else.

Peter J. Fabricant: Well, it might have been destroyed.

It might have gone somewhere else.

Unidentified Justice: But that is the only way you think the occupation of that house taints the later seizure?

Peter J. Fabricant: No, that is not the only reason.

Unidentified Justice: What is it?

Peter J. Fabricant: The reason is that to allow the entry without a search warrant I think you are assuming that because the police feel--

Unidentified Justice: Nobody is allowing it.

Peter J. Fabricant: --What is that?

Unidentified Justice: Nobody is allowing it.

Peter J. Fabricant: Well, by not suppressing--

Unidentified Justice: The court here held it was an illegal entry.

Peter J. Fabricant: --Well, nobody is denying that.

But by allowing the fruits of the illegal entry even that which was in an attache case and which was not open until a valid warrant appeared is I think dissipating the warrant requirement of the Fourth Amendment.

Unidentified Justice: Do you want your argument to be understood, counsel, as meaning that the government may never gain any advantage out of an illegal entry?

Peter J. Fabricant: Into a home?

Unidentified Justice: Into a home is what we are talking about here.

Peter J. Fabricant: Yes.

I think a home more than anything else, more than a car, more than anything else.

This Court has consistently said that the highest degree of privacy was--

Unidentified Justice: My question was intended to put it on the first part of the question that the government may never profit or secure any advantage toward a prosecution if it flows from an illegal entry of a home.

Peter J. Fabricant: --Yes.

Unidentified Justice: The advantage that was secured in this case with respect to the seizures made after the warrant was issued was just that the evidence was still there and it might not have been if they had not been in the home.

Peter J. Fabricant: Well, it probably would have still been there even if they had secured the premises.

Unidentified Justice: What kind of advantage then did the government get by the illegal entry?

Peter J. Fabricant: They do not really get an advantage.

The people get a disadvantage and their right of privacy in a home has been violated.

There is no reason for the police to do what they did here.

There have been a number of cases involving what some commentators call the impoundment of homes but not that many cases, and I believe that the reason that there have not been that many cases is that it is black letter law that absent exigent circumstances the police cannot go into your home.

Unidentified Justice: Is it your position that the police could have got a warrant on the information they had before they entered the home?

Peter J. Fabricant: They had five hours to do so.

Yes, I believe they do.

They certainly had the opportunity to do so.

They had the time.

Unidentified Justice: I know it was an opportunity and there may always be time.

Was the information which the police had if it had been presented to a magistrate on other judicial officer sufficient to get a valid warrant?

You concede that.

Peter J. Fabricant: Yes, it was because they presented that same information 19 hours after the illegal entry.

Unidentified Justice: Well, they had the advantage of knowing some things that they did not know 19 hours before.

Peter J. Fabricant: But they did not put them in their affidavit for the warrant.

They only put in their affidavit what they knew at the time that they determined in their own mind that they had probable cause.

They did not put in their affidavit that they entered the apartment and saw some other contraband in open view which would even have given them more probable cause.

So I think it is clear that they could have gotten a warrant before they entered.

Unidentified Justice: They were taking some risk I suppose that a warrant might not have issued.

Peter J. Fabricant: Well, if that is so then they are not supposed to go in.

Unidentified Justice: Well, you never know in advance whether a warrant is going to issue do you?

Peter J. Fabricant: I think the point of the Fourth Amendment particularly the warrant clause as applied to homes is that it is not a determination to be made in the first instance by law enforcement officers, by police.

The question of probable cause in the very first instance is to be made by a magistrate.

Unidentified Justice: But that is all pretty well settled.

No one as I understand it is arguing that the entry into the home was legal or was justified without a warrant.

The question is what consequences should be attached to the illegal entry.

Peter J. Fabricant: That is correct.

I think the consequences obviously... I have said so in my brief.

The consequences should be the suppression of all the evidence.

Unidentified Justice: Well, the evidence they found pursuant to their illegal entry was suppressed.

Peter J. Fabricant: All the evidence they discovered was.

Unidentified Justice: Sure.

Isn't that a sufficient deterrent to unlawful conduct because if an officer enters a home illegally and discovers something it cannot be used?

Isn't that enough of a deterrent without also arguing that evidence obtained under the warrant which was not obtained by virtue of any illegal discovery should also be invalidated?

Peter J. Fabricant: No, I do not think it is enough of a deterrent to deter the police from illegal entry in homes because in a great deal of situations contraband is not on kitchen tables.

It is not on desks.

It is secreted.

The mere penalty of depriving the government of the use of those objects which were seen in open view upon the illegal entry of the police would not in my opinion be enough of a deterrent.

Unidentified Justice: Do you understand the government to argue that the entry was actually legal?

Peter J. Fabricant: Well, they admit that it is not an issue but then they do argue that it is legal.

Unidentified Justice: Because if you can stay on the premises to prevent the destruction of evidence you should be able to enter the... If you stay on the premises legally to prevent the destruction of evidence why shouldn't you be able to enter the premises legally in the first place to prevent the destruction of evidence?

Peter J. Fabricant: Because the--

Unidentified Justice: Isn't that the logical end of the government's position?

Peter J. Fabricant: --Well, it is the end of their position, but I do not agree with it.

There is a--

Unidentified Justice: Well, I know you do not agree, but if you lose this case wouldn't that be the necessary result that the entry is legal in the first place?

Peter J. Fabricant: --That would be the result if the convictions were affirmed, and I submit that the warrant clause would almost disappear.

The police would always in the future secure premises from the inside, and that is what the Constitution is designed to protect--

Unidentified Justice: How can that--

--The consequence that Justice White just suggested to you, though, is essentially the same, is it not, if there had been a hot pursuit and the peopled entered the house and the police followed them in the hot pursuit context.

No warrant there is there?

Peter J. Fabricant: --But that is a clearly defined exception to the warrant requirement, the hot pursuit.

Unidentified Justice: You said there is no exception as of now at least that allows the police to occupy a premises to preserve the status quo with respect to evidence.

Peter J. Fabricant: Not from the inside.

From the outside, yes, but once they cross the threshold and are on the inside then they are there in this particular case for 19 hours having removed all the occupants and are there alone to use their discretion for the 19 hours.

The potential for mischief of their being there for the 19 hours is something which I would hope that this Court would consider, the potential for mischief.

I am not saying that the agent in this case peeked or--

Unidentified Justice: Counsel.

Peter J. Fabricant: --Yes, Your Honor.

Unidentified Justice: You emphasize the 19 hours.

Suppose it had been half an hour.

Peter J. Fabricant: It would have still been a violation, but it would have been less of a violation.

Perhaps this Court--

Unidentified Justice: Would it have changed the outcome of the case in your opinion?

Peter J. Fabricant: --You mean at the trial level?

Unidentified Justice: At the level you are arguing here today.

You have emphasized 19 hours.

Of course, that is more egregious, but in terms of the principle involved does it make any difference whether it was a half hour or 15 minutes or 19 hours?

Peter J. Fabricant: No, but this Court might feel, for example, because of the easily disposable nature of narcotics which was the contraband in this case that the police should be able to secure a premises from the inside.

But if that is so I would hope that this Court would say that can only be done for the absolute minimum amount of time necessary to secure a search warrant.

Unidentified Justice: I would think your position would have to be though that entry for five minutes is illegal.

Peter J. Fabricant: That is my position.

Unidentified Justice: You would be here if it were only five minutes wouldn't you?

Peter J. Fabricant: I would be here--

Unidentified Justice: If it was only five minutes you would still be here wouldn't you?

Peter J. Fabricant: --I would still be here, but I think I would have less of a potent argument.

Unidentified Justice: Why?

Peter J. Fabricant: Because this Court in recent years has not automatically applied the exclusionary rule.

It has applied the rule when its purposes would be best achieved.

A five minute entry, running in, securing and running out although it involves a crossing of the threshold is a lot different than a 10 hour continuous occupation.

Unidentified Justice: You might not apply the exclusionary rule, but I am not sure it would change the Fourth Amendment rationale very much.

I mean whether the entry was legal.

Peter J. Fabricant: No, it does not... The entry is still illegal, but when they have been there particularly longer than the time necessary to get a warrant and they--

Unidentified Justice: It is either legal or it is illegal in both instances whether it is nine hours or five minutes.

Peter J. Fabricant: --That is correct, but it is more egregious the longer they are there.

May it please the Court, I would like to reserve my remaining time for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Frey.

ORAL ARGUMENT OF ANDREW L. FREY, ESQ., ON BEHALF OF RESPONDENT

Andrew L. Frey: Mr. Chief Justice, and may it please the Court:

Let me start by just listing some basic things about this case that are not disputed to put it in context.

First, the officers lawfully acquired probable cause to arrest both Petitioners and to believe that there was a substantial quantity of cocaine in their apartment.

Second, the officers did not immediately conduct a warrantless search of the apartment on the basis of this information.

Rather, they consulted with an Assistant United States Attorney and then staked out the apartment for the purpose of apprehending Petitioners and preventing possible destruction of the evidence.

Third, the officers lawfully arrested the Petitioner Segura when he arrived at the apartment at 11 p.m. Fourth, the officers then entered the apartment because they believed that such action was necessary to prevent destruction of evidence.

In fact, the Court of Appeals held and we do not dispute here they had an insufficient basis for concluding that there were exigent circumstances justifying a warrantless entry and, therefore, their entry did violate the Fourth Amendment.

Fifth, when the officers entered they conducted only a limited security search and not a full evidentiary search.

Some evidence was found at the time of this limited security search, and that has been suppressed, but nothing seen during this initial search contributed in any way to the issuance of the warrant.

Sixth, the occupants of the apartment including Petitioner Colon were arrested and removed from the premises.

Seventh, subsequently 19 hours later a valid warrant issued and the search under its authority uncovered the evidence at issue in this case.

Now I think it is black letter law.

I do not understand anybody to really dispute it although I am not sure that the exclusionary rule does not operate on Fourth Amendment violations in the abstract.

Rather, it calls for the suppression of evidence that is sufficiently connected to or produced by a Fourth Amendment violation.

Now in this case the evidence was discovered and seized during the execution of a valid and untainted search warrant issued by a judicial officer on a showing of lawfully acquired probable cause.

Now the events surrounding this transaction also did include an unlawful entry into the premises where the evidence was ultimately found, but the Second Circuit concluded and we submit to this Court that there was no sufficient connection between the illegality and the acquisition of the evidence.

Two theories have been advanced to get around the simplicity and I think compelling nature of our position.

The first is Petitioners' theory that there was somehow an unlawful seizure of this evidence in the course of the illegal entry and that this made it primary evidence not subject to any fruits analysis and, therefore, not requiring a connection between the illegality and the discovery of the evidence.

The second is the theory of the District Court that there was a causal connection.

That is, there was a hypothetical causal connection because had the illegal entry not occurred the occupants of the apartment might have destroyed the evidence.

Now I want to discuss both these theories because I do not think they stand up.

But in order to make the case simpler I would like to start with looking at the situation in which the house was empty because I think that would make our position clear in its pristine form.

If the officers enter an empty house it is still a violation of the Fourth Amendment if they do not have a warrant or exigent circumstances.

Unidentified Justice: You confess a place of business is distinguished from a residence, a home.

Andrew L. Frey: Well, with a place of business there would be a question as to what the zone of privacy or private areas are, but they would require a warrant or exigent circumstances in private areas of a place of business as a home.

I mean, I think the Court has held that.

I do not think that is an issue here.

The point is that they would illegally enter the home then some time later the warrant would issue.

They would conduct their search.

They would find the evidence.

I do not see any conceivable way in those circumstances in which it can be said that the evidence is a fruit of the unlawful entry.

So unless the Court is going to totally abandon the notion that there does have to be a connection between the illegality and the evidence that is sought to be admitted at trial at least in the empty house situation--

Unidentified Justice: The connection according to the other side is that they stayed there.

I think his argument would be if they had gone out and left the place and then gone 19 hours for the warrant they would not have the same complaint.

But somehow they say the fact that they stayed there in the house for 19 hours negated the whole thing.

Incidentally, did they get overtime for that 19 hours?

[Laughter]

Andrew L. Frey: --I do not know.

I do not think the record reflects.

Let me address the 19 hour point because... I do not defend the police staying inside the apartment after the premises were secured.

I believe that that is not a justifiable or reasonable action because it is not necessary, and it does seem to me that that is a continuing search while they are in there.

The whole point of why they cannot enter without a warrant is that that entry constitutes a search, not a seizure but a search of the premises.

So I do not defend their staying in.

In my opinion once they had removed the occupants of the apartment they should have gone outside and waited outside the door.

Unidentified Justice: Under your rule what is the incentive for them to leave?

Andrew L. Frey: Well, anything--

Unidentified Justice: It is desirable as you conceded it that they should not stay.

Now what is their incentive to get out?

Andrew L. Frey: --Well, one would be civil liability if the Court made it clear that they were not permitted to stay inside once the premises were secured.

The point that I want to make about the 19 hours because I think it is critical to this case is that it is perfectly obvious that if they stayed inside or outside during the 19 hours that cannot possibly have any connection with the discovery of the evidence under the warrant.

As long as they were entitled to secure the premises from the outside which I do not understand my opponent to dispute, it is just an illegality hanging in the air.

It is still the same thing.

Unidentified Justice: Well, you think there is a qualitative difference between seizing a home from the inside without a warrant and seizing it from the outside?

Andrew L. Frey: Well, I do not think the difference resides in seizure doctrine.

First of all, the concept of seizure that my colleague has come up with has no background in this Court's decisions, the notion that when you impound a house and prevent people from going in that constitutes a seizure of every item of the house's contents--

Unidentified Justice: Well, you do not ordinarily seize real property do you?

Andrew L. Frey: --No.

I mean there may be an abstract or theoretical sense in which there is--

Unidentified Justice: But if you could do it I suppose there would be a seizure involved if you secured it from the outside.

Andrew L. Frey: --There would be.

I think the point that I am making is in part but to the extent you are going to say that there is a seizure of the house that seizure is permissible if done from the outside while you are procuring a warrant in order to prevent people from entering and removing evidence.

Unidentified Justice: Even if it is labeled seizure?

Andrew L. Frey: Even if it is labeled seizure.

A seizure--

Unidentified Justice: Mr. Frey, the Fourth Amendment does not just use the term "seizure".

It uses the term "unreasonable seizure".

Andrew L. Frey: --Unreasonable--

Unidentified Justice: Is it not at least theoretically possible that one could say that the seizure when you are outside is reasonable but when you are inside it is unreasonable?

Andrew L. Frey: --Well, I think what--

Unidentified Justice: At least that is conceptually possible to say that.

Unidentified Justice: I think you have almost admitted it because you said you thought they ought to go outside.

Andrew L. Frey: --I think that where they enter the house without exigent circumstances they are committing a Fourth Amendment violation.

Unidentified Justice: Right.

Andrew L. Frey: In my opinion the Fourth Amendment violation they are committing is illegal search--

Unidentified Justice: But you said you thought they ought to get out as soon they could and why unless you think one condition is more reasonable than the other?

Andrew L. Frey: --Not with respect to seizure.

I do not think you could label it any more unreasonable seizure.

The problem is that while they are sitting in the house they may be going to the refrigerator and getting a beer, looking around, seeing things that were not evident to them during their initial entry, and of course if they see things during this 19 hours that they are there that is evidence of a crime then under the Second Circuit's rule they would not be able to use that.

So they do have some incentive to get out, and from the standpoint of furthering their investigative goals in the case they have virtually no incentive to stay in because the purpose was to secure the premises.

Once that purpose is accomplished you can equally well secure the premises by posting--

Unidentified Justice: Well, I think they have an incentive to stay in in February in New York.

[Laughter]

Andrew L. Frey: --I assume the corridors of this apartment building were also heated.

Unidentified Justice: Do not bet on it.

[Laughter]

Mr. Frey, I take it although the issue is not here but I take it from your brief or somewhere that if the officers had known in advance what they learned after they entered here as to who was on the premises you would say that they could have entered legally.

Andrew L. Frey: Well, I do not think actually--

Unidentified Justice: If they had known that there were people on the premises and they had probable cause to believe that there are easily disposable narcotics on the premises, could they make a legal entry for the purpose of removing the people?

Andrew L. Frey: --That would be... If they in addition had sufficient reason to believe there was a danger of destruction of the narcotics they could make an entry for the purpose of preventing the destruction of the evidence.

Unidentified Justice: In which event although the entry was legal if they stayed too long it would become illegal.

Andrew L. Frey: Equally whether the legal... Whether the initial entry was legal or illegal does not relate to whether it is illegal for them to continue staying here, but I think this whole 19 hour business is a complete red herring in this case.

I mean, it has never been suggested, and I do not understand how it could be what relationship the 19 hours has to the discovery of the evidence.

It is though they took Segura down to the station house and beat a confession out of him.

It would be shocking and improper but it would not have anything to do with the discovery of the evidence.

Unidentified Justice: The affidavit as I understand it was not only based on facts that were in the hands of the police before the entry but was actually turned in earlier wasn't it?

Andrew L. Frey: No.

Unidentified Justice: Was the affidavit turned in later?

Andrew L. Frey: After the entry.

Unidentified Justice: When was it executed?

Andrew L. Frey: What the record shows is that they entered at 11 o'clock at night.

They arrested the people.

The next morning they went in to the U.S. Attorney's Office.

There was a discussion with the AUSA in which the agent in charge related the facts for the purposes of preparation of a search warrant affidavit.

Most of the day was then taken up with the process of booking and the initial appearance of the suspects, appointment of counsel, bail, all of those matters.

So I do not think the 19 hours is as bad as it sounds.

I do not have a problem with the 19 hours.

I do have a problem with staying in the apartment for whatever period of time is--

Unidentified Justice: Well, you also have a problem that you really have not met yet of saying that the illegal entry tainted the later search under the warrant because it did keep the people who were found to be on the premises from destroying the evidence.

Andrew L. Frey: --Well, let me turn to--

Unidentified Justice: You still have to get to that.

Andrew L. Frey: --Yes.

My colleague has not really relied on that theory, but I will turn from the seizure theory which seems to me quite untenable for the moment to this more traditional fruits kind of inquiry that you are suggesting which is that the possibility that the evidence would have been destroyed before they got a warrant suggests that the evidence found under the warrant should be treated as a fruit if I understand your question.

Now I have several responses to that, and this is a little bit like the flip side of the inevitable discovery cases where what you are dealing with is a hypothetical independent source.

The evidence was actually found during an illegal search, but the government can hypothesize that it would have been discovered in any event.

Here the shoe is on the other foot, and it is the defendant who is hypothesizing that the evidence would have been destroyed had the entry not been made.

Now there are a couple of problems with that.

First is that the destruction of evidence is a crime.

The purpose of the Fourth Amendment is not to aid offenders in the destruction of evidence to prevent the uncovery of their acts.

and I do not believe as a matter of exclusionary rule policy that it would be appropriate to treat the possibility of destruction of evidence where that is the sole hypothetical nexus between the illegality and the discovery of the evidence as a causal connection which bridges the gap and transmits the taint to the discovery of the evidence.

Unidentified Justice: What about removing it?

Is that illegal too?

Andrew L. Frey: It is illegal I think to remove or destroy for purposes of evading--

Unidentified Justice: You think it would have been a crime for somebody to pick up the briefcase and walk off and go to somebody else's house with it?

Andrew L. Frey: --I do not think it would be a crime if it were not for the purpose of removing evidence from... In any event the entry did not prevent them from removing the evidence.

They were not going to be able to remove any evidence in any event... prevented them from destroying the evidence.

Unidentified Justice: I do not know.

Andrew L. Frey: Well, they were staking out the place from the outside.

If Colon who was in the apartment had left they could have arrested her.

They had probable cause to do so.

Unidentified Justice: Did they have probable cause to arrest anybody they found in there that came out of the building?

Andrew L. Frey: Not necessarily.

That would depend on the facts.

Anybody in the apartment?

Unidentified Justice: Do you think they could have searched anybody who came out of the apartment?

They might not have been able to detain them.

Andrew L. Frey: Well, in Pawlings v. Kentucky the Court adverted to but did not decide the question, and in Michigan v. Summers I think the Court suggested that they could require people not to leave unless they would agree to subject themselves to a search.

The question is what is reasonable under the circumstances given the officers' possession of probable cause.

Let's not forget in all of this that at all times they had probable cause to believe that there was a half kilogram of cocaine.

Unidentified Justice: Do we have a case... There are so many Fourth Amendment cases.

Do we have a case that says that officers may secure a house until they get a warrant?

Andrew L. Frey: Mincey v. Arizona.

Unidentified Justice: We applied it at least if not stated it in the search case last June, the name of which eludes me now other than Mincey where the customs agents found and then they had a controlled delivery.

Is that Mincey?

Andrew L. Frey: Oh, Illinois v. Sandreyas.

I think the question in these circumstances is what is reasonable during the time when the officers are procuring a warrant in terms of immobilizing the premises, and there are a lot of interesting questions.

I do not think this Court has by any means explored all of the ramifications of this issue, but I do think that there is another feature of allowing the potential destruction of the evidence to be used as establishing a causal connection which is noteworthy and which the Court of Appeals noted.

That is the adherent contradiction or irony in saying that on the one hand the entry was illegal because there was no sufficient danger of destruction of the evidence, yet on the other hand the discovery of the evidence was a fruit of the illegal entry because it would have been destroyed had the officers not entered.

Now the result of this approach is to penalize the officers for being right about the dangers of evidentiary destruction.

Unidentified Justice: Isn't there another problem here?

Wouldn't your result possibly depend on the length of time involved and how your opponent in effect says you take the same position with five minutes and 19 hours?

I take it you might not take the same position if it was 30 days say because even though it might not be deliberately destroyed just in the ordinary course of events a cleaning person might come in and throw something away.

Conditions change over a long period of time.

Maybe I should ask you.

Would you take the same position in 30 days?

Andrew L. Frey: Well, I am not sure that the fact that an illegal entry has been made would be the critical question.

I mean, I think there is because the standard of reasonableness governs Fourth Amendment inquiries there is a question about the length of time that it is reasonable to impound property or to exercise dominion over somebody's home, and it would depend on the purposes, what the officers were doing during that time, what their purposes were, what they in fact--

Unidentified Justice: What if this was a home out in the country somewhere and they just moved in for 30 days just waiting and for some reason there was--

Unidentified Justice: --But you don't think that would have any impact at all on this issue no matter how long a period of time involved?

Andrew L. Frey: Well, I am reluctant to say that it wouldn't.

Certainly if the causal connection between the entry and the discovery of the evidence is, for instance, not due to any crime but due to the cleaning woman throwing it out or something like that then you do not have the same problem of using this rationale of kind of subverting the Fourth Amendment into a purpose that is not its purpose.

Unidentified Justice: Well, 30 days would be "unreasonable" wouldn't you say?

Andrew L. Frey: I would say ordinarily 30 days would be--

Unidentified Justice: Because I mean, for example, if the agents stayed in that apartment for 30 days that would be an unreasonable amount of food.

[Laughter]

Andrew L. Frey: --Well, it would be unreasonable.

Whether the Fourth Amendment is the right way to analyze it I am not certain, and I point out that the 19 hours is not a problem in this particular case because the two people who were entitled to access to the apartment were both subject to the arrest, and they were both in jail.

Unidentified Justice: They were both arrested.

Andrew L. Frey: They were both arrested.

While the arrest of Colon would be invalid under Payton v. New York because it entailed a search of her home in entering the premises, the actual seizure of her person is not illegal because a warrant is not required under Watson.

So I do not think the magistrate if he were applying the exclusionary rule at an initial appearance would be justified in releasing her simply because the arrest had been accompanied by an unlawful search of her house.

The remedy for the unlawful search of her house is to exclude any evidence discovered in the course of that unlawful search.

Now if I can come back to the seizure theory for a moment.

I have a little difficulty dealing with it because it strikes me that my opponent's argument is something of an ipse dixit, and I do not know how to get an analytical handle on it.

The assertion that the primary evidence-secondary evidence distinction is relevant here which is an attempt to find some kind of pigeon hole in Fourth Amendment analysis that he can fit his case into seems to me completely out of place.

The whole concept of distinguishing between primary and secondary evidence is derived in the course of a search which reveals some evidence immediately and which leads to other evidence.

Now I can give you an example in the case of a seizure to show that it is misplaced here.

Let us suppose that somebody leaves his property at a hotel check room and goes out of town for two days and the police without probable cause seize his briefcase but they do not open it and then before the fellow returns to town they acquire probable cause, go to the magistrate, get a warrant and search the suitcase.

I do not see any difficulty at all with applying a fruits analysis with asking the question whether the fact that they had seized it and had it in their possession rather than having it left at the hotel check room contributed to the discovery of the evidence.

Unidentified Justice: You went a little too fast for me to catch the basis for the issuance of the warrant.

After they seize it an informant calls up and says John Doe has left his briefcase full of--

Unidentified Justice: Red briefcase that was put in locker 16 contains narcotics or some such thing?

Andrew L. Frey: --Yes and assuming there is probable cause and they got a warrant.

My point is just that this notion that if it is somehow seized then it automatically is primary evidence and you just do not have to apply a fruits analysis is quite mistaken.

One of the consequences of this notion is that the minute the police stick their nose inside the house and seize it they have committed a violation which is treated the same way as if they went through the house, opened every desk drawer, removed every paper and item of property, loaded it into a van and took it off all without a warrant.

Unidentified Justice: Mr. Frey, would your hypothetical produce the same answer if the telephone call from the informant was after the owner of the briefcase went to the check room and said I want my briefcase?

Andrew L. Frey: No.

Then you would apply a fruits analysis and you would determine that it was... But my point is--

Unidentified Justice: So that in this case if they could prove that ten hours later the cleaning woman would have come and cleaned out the apartment, not to destroy evidence but she does not like these little bags around or something like that.

Then they would win.

Andrew L. Frey: --Except for the fact that they could have kept the cleaning woman out from outside.

Unidentified Justice: I see.

If, however, she had a key to the back door or something like that then you would lose.

Andrew L. Frey: One can imagine--

Unidentified Justice: I do not know what all this trouble is about.

I never heard any cleaning women around these shooting galleries.

Andrew L. Frey: --This is not a shooting gallery.

This is a high-class, large scale cocaine distribution operation.

I mean, these people have $50,000 in cash.

That is one of the items in evidence in issue here.

He had just distributed a half a kilo of cocaine.

He had three pounds more in his apartment.

Unidentified Justice: Well, there was no cleaning people involved in this case.

Andrew L. Frey: No cleaning people involved in this case.

Unidentified Justice: I do not recall from the findings of the District Court or the District Court's observations but was there any treatment of whether this was a place of business or home or residence by the District judge?

Andrew L. Frey: I think it is treated as a residence.

Unidentified Justice: Treated it, but was there any analysis directed?

Andrew L. Frey: I do not recall that there was any, and I would not ask the Court to rest its decision in this case on the notion that this is a place of business because I believe even as a place of business it has protection from the warrant clause.

Unidentified Justice: The same degree?

Andrew L. Frey: Well, it would not necessarily be the same.

We are not here to dispute whether the entry into the premises without a warrant was lawful.

That is a given of this case that it was not lawful.

The reason we discuss that issue in our brief--

Unidentified Justice: The reason it was unlawful is that they actually were mistaken about exigent circumstances.

Andrew L. Frey: --That is what the Court of Appeals said that there were not exigent circumstances--

Unidentified Justice: You have not brought that up.

Andrew L. Frey: --Huh?

Unidentified Justice: You have not challenged that.

Andrew L. Frey: We have not challenged that.

I think the Court of Appeals made one mistake in its analysis which we did not mention in our brief which is that when they went and knocked on the door and Colon opened the door they then knew before they had committed any Fourth Amendment violation that the apartment was occupied.

The Court of Appeals' finding of no exigent circumstances did not rest solely on that but rested also on the lack of sufficient probability if they had just arrested Segura and taken him away that the occupants would have destroyed the evidence.

Unidentified Justice: But you are not defending the result below on the grounds that the entry in the first place was legal?

Andrew L. Frey: No.

I was saying the only reason we discussed that point in our brief is because my opponent tries to make much of the fact that this is a flagrant or egregious violation of the Fourth Amendment.

I want to get to the point about if we are going to worry about deterrents in the air should we just abandon the Court's normal principles of requiring a nexus between the evidence and the illegality because something that has concerned some courts a rule that would allow the use of evidence in a case like this may unduly encourage the police to engage in Fourth Amendment violations.

There are several things to be said about that.

The first is that this is a situation which does not inherently... The rule for which we contend does not inherently lend itself to encouraging flagrant violations of the Fourth Amendment because the more clear it is to the police that there are no exigent circumstances the less they have to gain by entering the premises rather than waiting for the warrant which they fully believe they have probable cause to get and will get.

When they enter the premises they can only have the benefit of evidence that is held not to be a fruit of the entry so under the holding of the Court of Appeals in this case and as I think Justice O'Connor pointed out earlier they still run the substantial risk that evidence that is found during the original unlawful entry if it is unlawful will be suppressed.

In addition, the problem of flagrant violations is an area where civil liability is a meaningful remedy.

That is, the risk of encouraging flagrant violations is attenuated or offset by the fact that if it is flagrant there is potential civil liability.

Now I think that is all I have unless the Court has any further questions.

In response to the Chief Justice's question about whether this was a residence the evidence presented at the District Court was that the police had been surveilling and trailing these two people for about a month.

As a matter of fact, one police officer, an undercover officer, assisted in moving these people from one apartment in Queens to another.

It is clear and the court below, the District Court, assumed correctly that it was a residence.

There is a qualitative difference between seizing the apartment from the outside and seizing it--

Unidentified Justice: Do you think it would make a difference if it were a place of business?

Peter J. Fabricant: --Yes.

I think this Court has always said that the highest expectation of privacy is in a home more so than an automobile or I would even say a business although you certainly do have a high expectation of privacy in your office.

Unidentified Justice: Then what about--

Peter J. Fabricant: But not so much as the home.

Unidentified Justice: --Then what about a home which is used as a place of business with the home if it could be shown merely a front, a cover and it is really a place for distributing narcotics?

Peter J. Fabricant: I would think that if that could be shown by the prosecution then your expectation of privacy might be lessened at least somewhat.

We do not have that situation here.

There was no evidence or it was not propounded to the District Court or the Court of Appeals that this was a place of business disguised as a home.

Unidentified Justice: Are you saying that there is no expectation, no legitimate expectation of privacy in the conduct of criminal affairs, criminal activity?

Peter J. Fabricant: Well, the decisions of this Court dealing with the Constitution do not just deal with criminals.

They deal with all of us.

Certainly we want to be able to have the police catch criminals and seize evidence.

Unidentified Justice: Well, but you spoke of it in terms of the expectation of privacy which is the way the courts have spoken of it.

It is the subjective feeling of the occupant of the home that he or she or all of them are going to be secure.

What I am trying to get from you is you seem to concede that there is less an expectation, a legitimate expectation of privacy if it is a place of business.

Peter J. Fabricant: Perhaps because home is mentioned in the Fourth Amendment.

Place of business is not.

It would be perhaps a slighter less degree of expectation of privacy.

I do not think it would be much less.

It is just that this Court has always stressed that the home has the highest degree of expectation; therefore, perhaps an office has a slightly less degree.

Certainly even a criminal committing crimes in his or her home has an expectation of privacy that the police will not violate the privacy of the home even though they are committing crimes.

I think the framers in effect weighed that, and this Court has said that the man has a right to retreat into his own home and there be free from unreasonable governmental intrusion.

Unfortunately Fourth Amendment search and seizure cases that get to this Court always seem to deal with criminals.

[Laughter]

But it seems to me I would not like it if the police using their own discretion came into my apartment in New York and stayed 19 hours because they believed I had contraband and then continued to search and not search depending on what a magistrate does the next day.

That would affect my rights as not a criminal.

The difference between seizing from the outside and securing from the outside and doing what the police did here is not a difference in result.

The result would have been the same, the securing of the evidence, but I think on the outside would have been reasonable.

I would equate the going inside rather than securing it from the outside as opening the trunk in Chadwick before they got the warrant or opening the suitcase in Arkansas v. Sanders before they got the warrant.

Even though the house might be considered seized even from the outside that would be perhaps a reasonable seizure.

Unidentified Justice: Suppose the officers stayed 19 hours and then left and the next day a warrant was issued on independent grounds, on grounds that were not tainted and they went and discovered what they discovered here.

Would you still argue that the officers had committed such a grossly illegal act that the authorities should never be able to search the house?

Peter J. Fabricant: I would still argue it, but I think my argument would carry less weight because in that situation there would at least be a break in the continuous seizure.

Unidentified Justice: I know, but in terms of the connection between the entry and the discovery under the warrant--

Peter J. Fabricant: I would argue the same, Your Honor.

Unidentified Justice: --I know, but you would have to.

Peter J. Fabricant: I would--

Unidentified Justice: Do you think your argument is any weaker or any stronger now than if it were the next day?

Do you think the break makes any reason?

Peter J. Fabricant: --Only in the respect that--

Unidentified Justice: Suppose that you would have to lose the case if it were the next day.